' SHAFIUR RAHMAN, J.--Leave to appeal was granted under Article 212(3) of the Constitution to the appellants who belonged to the Municipal High Schools whose control and management was taken over by the Government of Punjab w.e.f, 1-7-1975 under section 224(b) of the Punjab Local Government Act, 1975 (hereinafter referred to as the Act). The exact question of law arising in the case is as to what extent they can claim merger with the regular cadre of the Government servants in the Education Department and how far they can claim right to compete with such civil servants in the matter of promotion to the higher posts in the service.
2. The appellants in the two appeals were serving in the High Schools managed and controlled by the Municipal Committees. Section 224 of the Act authorised the Provincial Government as hereunder:- "224. Transfer of functions.--Notwithstanding anything contained in this Ordinance or in any other law Government may from time to time direct that subject to such terms and conditions as may be specified in the direction--
(a) any function of a Municipal Corporation shall be performed by a Municipal Committee within the Corporation.
(b) any institution or service maintained by a Local Council shall be transferred to the management and control of the Government; or
(c) any institution or service maintained by the Government shall be transferred to the management and control of a Local Council: ' Provided that no direction regarding the transfer of any institution or service from a Local Council to the Government or vice versa shall be given without the consent of the Local Council.
' A Notification was issued by the Punjab Government on 27th of August, 1975 in the following terms:- "In exercise of the powers conferred by section 224(b) of the Punjab Local Government Act, 1975 (Act No,XXXIV of 1975) and after obtaining the consent of the Local Council concerned, the Governor of the Punjab is pleased to direct that the following High Schools for Boys and Girls run by the Local Councils in the Punjab shall stand transferred to the management and control of the Government of the Punjab in the Education Department, with effect from 1-7-1975:- ' List of 66 Municipal High Schools.
The terms and conditions of transfer of Local Councils Schools to the Education Department shall be as follows:-
(1) The Staff of such Schools shall be transferred to the Education Department. The previous service of the staff so transferred shall be counted for the purposes of pension, seniority and other benefits.
(2) No contribution, financial or otherwise shall be made by the Local Councils to the Government for the maintenance of these schools except that the provident fund contributions of the staff, if any, shall be transferred to the Government.
(3) The building and other property of the Schools, movable and immovable, shall be transferred to the Government free of the cost.
(4) The salaries of staff paid by the Local Councils for the months of July, 75 shall be reimbursed to the Local Councils by the Education Department."
3. On 22-7-1980 certain postings and transfers were ordered and appointments in NPS-17 i.e, in the higher grade to that of the appellants, were made. The condition imposed in the transfers and postings was as follows:- "The adjustments/postings of the above against the posts of NPS-17, have been made in the exigencies of service on purely temporary basis and will not confer upon them any right for regular appointment, promotion, seniority, or, for the award of the regular grade. They are liable to be reverted to the SST posts at any time without notice."
4. Thus aggrieved Ghulam Mustafa appellant in Civil Appeal No,72 of 1987 at first filed a Constitutional Petition (W.P. No,10028 of 1980) which was not entertained in view of bar of Article 212 of the Constitution. He then instituted an appeal before the Service Tribunal. The relief that he sought from the Tribunal was as hereunder:- "In view of the above submissions it is respectfully prayed that the respondents may kindly be directed to cancel the orders of promotion of 86 S.S. Teachers from the General Cadre promoted temporarily in N.P.S.17 vide Notification No,13557/Admn.-I dated 13-5-1980 (Annexure-B) issued by respondent No,2 and promotions to this cadre may kindly be ordered on joint seniority or seniority in M. C. High School basis."
5. Mrs. Neelam Amar, the appellant in Civil Appeal No,74 of 1987 found that her name was not shown in the seniority list in the corresponding cadre of the Education Department pertaining to the Civil Servants and she in her Appeal before the Service Tribunal claimed the relief that "respondents be directed to place the appellant's name in the seniority list of General Cadre from the date of induction into Government Service as admitted by the Education Department".
6. Ch. Khalil-ur-Rehman, Senior Advocate, the learned counsel for the appellant Ghulam Mustafa contended that the Notification of the Government under section 224(b) of the Act read with Rule 15 of the West Pakistan Education Department Subordinate Regional Service (Administration Branch), (Men's Section) Rules, 1962 empowers the Governor to safeguard rights of Government servants and the order should be taken to imply the induction of all the employees of the category to which the appellant belongs in the Regional service. Once such integration into regular service had taken place and the appellants become members of the service, they could not be kept out of the list of seniority of the so-called general cadre. They had to be given due benefit of seniority and also were entitled to be considered for promotion alongwith others in the general cadre.
7. Mr. Muhammad Hussain Awan, Advocate, the learned counsel for the appellant Mrs. Neelam Amar, claimed as did Ghulam Mustafa integration with the general cadre of the Secondary School Teachers and promotion in their line. It was further contended that she had been discriminated against as a few others in similar situation had been differently treated and given benefits of past service and qualification in the matter of promotion in the general cadre.
8. Mr. Shahzad Jehangir, Advocate, the learned counsel for the respondents on the other hand raised a number of preliminary objections to the competence of the appeal before the Tribunal. In the first place, it was stated that necessary parties had not been impleaded. If the object of Ghulam Mustafa was to get the appointment of certain officers junior to him in NPS-17 undone, he should have impleaded those officers against whom his appeal was directed. He has not done so.
The promotion order which has been brought before the Service Tribunal for challenge could on no principle be taken to be a final order. It was a temporary stop-gap arrangement which conferred no right on the incumbent either of seniority or of pay. Further it has been contended that what the appellants were challenging was the promotion itself, if at all it was a promotion, and not the eligibility therefor. Such an appeal before the Tribunal was barred. There was, according to the learned counsel, no appeal or representation ever filed by the appellant against the order which was brought for challenge before the Service Tribunal. Besides, according to the learned counsel, the relief that they were seeking from the Department throughout was different from what they sought from the Tribunal. From the Department they were seeking the merger of the sixty-six Municipal High Schools and their staff with the general cadre while before the Service Tribunal and in this Court they are challenging the order which concerns the postings and transfers etc. On merits, the learned counsel drew our attention to what was stated in the parawise comments filed by the Deputy Director in the following words:- "The factual position is that the District Councils/Town Committees High Schools were provincialized in the Ist phase in 1970, the second phase was taken over in 1971 and in the third phase the Municipal Committees High Schools were taken over in 1975. The appellant in this case belongs to the 3rd phase. The merger of the Headmasters, SSTs and other teaching staff taken over in 3rd phase with the Ist and 2nd phase is under the motive consideration of the Government in order to give them benefit of seniority etc. In this respect provincial Directorate has already approached the Government in Education Department under its Memorandum No,14/26- 76/208/9-2, dated 5-1-1977. As done in the case of Ist and 2nd phases even after the inclusion of 3rd phase the Headmasters/Secondary Schools teachers and other teaching staff, it would continue to remain as self-diminishing Cadre as per Government Order No,DEA-14/27-65, dated 10-9-1971. The cadre of Headmasters/SSTs, and other teaching staff on Government side is entirely a distinct cadre and the appellant cannot claim under any rules for his merger in this cadre."
9. The statutory instrument which governs the appellants in the matter agitated by them is the Notification under section 224(b) of the Act. This Notification is required to issue with the consent of the Local Council. The condition of transfer clearly provides that "the previous service of the staff so transferred shall be counted for the purposes of pension, seniority and other benefits". They stood transferred to the Education Department. Undeniably these conditions have been satisfied. What the appellants seek is that they should be merged in a particular cadre already existing in the Government comparable to their own and not only they should be so merged but thereafter the benefit of their seniority should be extended as against those others in that cadre. In the first place, there is no guarantee of merger of cadres or making them compete in the matter of seniority with those others already enjoying a continuity in cadrised service providing both for recruitment and promotion. What has factually been done is that they have been kept within the control and management of Education Department but in a separate cadre, as a distinct entity and all their terms and conditions with regard to pension, seniority and other benefits have been protected and are being observed. If it was intended to induct them into a regular service it could have been provided in the Notification under section 224(b) of the Act or the Rule itself could have been relaxed by the Governor. It would be a far-fetched argument to read relaxation of all service rules in terms of Rule 15 as relied upon by the learned counsel for Ghulam Mustafa. The law requires that seniority list of each cadre should be prepared separately. The appellants cannot seek from the Tribunal that promotion in one cadre should be made on the basis of seniority in another cadre and that the two cadres should be integrated into one unless the law makes clear provision for making it a term and condition of the employee concerned. That being not the position, the appellant-Ghulam Mustafa was not entitled to relief asked for.
10. As regards the other appeal, the same terms and conditions govern the appellant and so far as her case for having been discriminated against is concerned, she has not taken this plea at any earlier stage nor we find stated full facts and particulars of persons against whom discrimination is alleged. We find that for the first time such a ground is being taken up before us without laying down the factual basis for it. It is no stage to go into such a ground as the facts pleaded are all outside the record.
11. So far as the preliminary objections with regard to the competence of the appeals before the Service Tribunal are concerned, we find that they were not specifically raised before the Tribunal. In any case, they have not been dealt with or taken note of in the judgment of the Service Tribunal. As we have attended to the merits of the case and the views of the Tribunal are not available on these preliminary objections, we decline to deal with them individually.
12. We find no merit in these appeals and they are dismissed leaving the parties to bear their own costs.